More changes, and maybe a special session, for tank bill

CHARLESTON, W.Va. -- As a House committee introduced a fourth version of a sprawling bill to regulate chemical storage tanks and drinking water in West Virginia, more than a quarter of House of Delegates members want a special legislative session to give them more time to consider the bill.

Delegate Meshea Poore, D-Kanawha, asked Gov. Earl Ray Tomblin to call for the special session to focus solely on the water bill. She was joined by a bipartisan group of 26 other Delegates, including Minority Leader Tim Armstead, R-Kanawha.

"We will miss a golden opportunity to produce legislation that will instill a renewed sense of confidence in the administrative and legislative branches of West Virginia's governance structure," Poore said in the letter. "[A] resolution requires more time and concentration than the regular session affords."

But House Speaker Tim Miley, D-Harrison, and Judiciary Chairman Tim Manchin, D-Marion, both said the special session was unnecessary.

"I regret that these members want to give up on passing a bill during the regular session when we still have plenty of time to perfect it," Miley said in a news release.

Tomblin's original bill was entirely re-written in the Senate. The version passed by the Senate was then re-written by the House Health Committee.

On Thursday evening, the House Judiciary Committee recommended extensive amendments to the bill, including completely redefining above ground storage tanks.

Manchin said all the changes were part of the process.

"I don't think it's a masterpiece, I think it's a good working document," he said of the newest iteration of the bill. "I think we're getting very close to what a final document should look like. The governor took a stab, the Senate took a stab, Health has taken a stab, Judiciary's here now."

Above ground storage tanks - like the one that leaked at Freedom Industries contaminating the region's drinking water - would be subject to annual inspections by professional engineers under the proposed bill.

Prior versions of the bill contained long lists of exempted kinds of tanks that would not be subject to the bill's provisions.

The newest version of the bill does away with most of those exemptions, but contains a very specific definition of above ground tanks - larger than 1,320 gallons. The bill exempts "process vessels" which are used to manufacture, mix or make chemical, rather than store them.

Delegate John Ellem, R-Wood, worried that the leaky tank at Freedom, which contained the chemical Crude MCHM as well as water, might not be covered because of the "process vessels" exemption.

The bill defines a process vessel as a tank with, "a steady, variable, recurring or intermittent flow of material."

"To me, variable could mean a lot of things," Ellem said. "It just means subject to change. Is there a loophole there by incorporating the word variable?"

Robert Williams, a counsel for the Judiciary Committee, told Ellem that the Freedom tank would have been covered under the bill because the chemical solution in the tank was not being actively mixed.

A prior House committee had added a requirement that every water utility build either a secondary water intake or tanks to hold at least three days worth of water, so that plants could shut off their primary intake in case of contamination.

That requirement would be removed in the newest version. Instead, utilities would be required to study the expense and feasibility of a secondary intake or water storage.

Manchin said that it was too expensive - millions of dollars per plant - to require a secondary intake.

The bill requires stricter regulation in areas where a faulty tank would potentially contaminate a water system. These "zones of critical concern" are different depending on the speed and flow of the waterway. They comprise an area within 1,000 feet of a river and within a five-hour flow upstream of any water intake point.

Any tank within a zone of critical concern must get a more rigorous "individual" permit from the Department of Environmental Protection, rather than just a "general" permit.

The bill also requires every water utility in the state to complete a source water protection plan, which would document how the utility would respond to contamination. The source water protection plans would also need to include an analysis of the water system's ability to switch to an alternate water source.

West Virginia American Water Company has been criticized for not shutting off its water intake in the Elk River after it learned of the leak. The company has repeatedly said it stands by its decision and that shutting off the intake would not have been feasible.

Manchin said utilities would be provided with grants, possibly from the state's rainy day fund, to help them write the source water protection plans.

"I feel that we need to be prepared to spend some money on this," Manchin said. "There is nothing better that we can use rainy day money on than protecting water for our people."

The changes to the bill came after Manchin met over the weekend with representatives from the state Department of Environmental Protection, the Bureau for Public Health, the chemical industry, the oil and gas industries and environmental groups.

The Judiciary Committee will meet Friday to continue discussing the bill and Manchin expects them to vote on it on Sunday. The bill would then head to the House Finance Committee before going to the full House. If it passes the House it would then go back to the Senate for approval.